Insurrection

In an age of sensationalism and hyperbole for political points, words like ‘insurrection’ and ‘coup’ might make us numb. but let’s dig deeper. Was the Jan 6th Capitol Riot an “Insurrection?”

(Note: this episode long delayed due to potential threats to the hosts’ welfare, but we’re finally releasing it!)

“We gather today due to a selfish man’s injured pride and the outrage of his supporters whom he has deliberately misinformed for the past two months and stirred to action this very morning. What happened here today was an insurrection, incited by the President of the United States. Those who choose to continue to support his dangerous gambit by objecting to the results of a legitimate, democratic election will forever be seen as being complicit in an unprecedented attack against our democracy. They will be remembered for their role in this shameful episode in American history. That will be their legacy.

–Mitt Romney, Republican US Senator from Utah

You might have wondered why Xander and Erik never did an episode on the Capitol Riot. We did! 3 days after. But… there were potential credible threats that made us decide that discretion was the better form of valor, so we held off for… over five months. But we decided we needed to get this out. Very, very extensive show notes for this one!

1. Intro “in an age of sensationalism and hyperbole for political points, words like ‘insurrection’ and ‘coup’ might make us numb. but let’s dig deeper.”
2. Background
   1. So literally everyone knows that a frothing mob of Trump supporters broke into the capitol, causing damage to the capital building and forcing legislatures to be evacuated from the building by secret security. During the siege, one woman was fatally shot, and four other people died, one of whom was a capital police officer.
   2. Articles of Impeachment have been drafted against Trump, including Insurrection. Going to the House on Monday, which is probably before you’re listening to this but after we record it.
3. Partisan / “conventional” positioning
   1. We like to use the “80% rule” for establishing that there is an American consensus
   2. We… can’t imagine 80% of Americans thinking that this isn’t truly horrible; we’re going to assume people agree:
      1. This was a riot and an act of violence against our nation’s elected representatives
      2. They were in real danger from these people
      3. What they did was an assault on our democratic process
      4. Trump’s persistent lying that the election was stolen led to this 
   3. But likely some questions depending on your political leaning on…
      1. …is this comparable to the riots which occurred during the BLM protests?
      2. …was this premeditated? Or just a surge of passion?
      3. …is the President’s conduct simply irresponsible? Or criminal?
4. Premeditation with abundance of proof 
   1. Let’s get one thing straight: The President has been completely transparent about multiple attempts to illegally and therefore criminally overturn a valid election. And the mob that showed up at the capital had planned far in advanced. This is evident through photos of what people were wearing – full tactical gear with zip ties, guns, shirts that said “civil war jan 6 2021”. These people were flagrant in their display of violence and their enjoyment of that violence.
      1. Trump telegraphed beforehand it would be fraudulent, with no evidence
      2. Said to Barr he wanted to just throw his opponent, Biden, in jail
      3. Told the public he told Barr he wanted to just throw Biden in jail
      4. Declared publicly he wanted states to stop counting votes while he was ahead
      5. Pressured Georgia election officials (Sec State, investigator) to find votes for him (likely a crime). That is: to overturn the results of the election so that Trump could remain in power.
      6. …

Let’s look into US Code 18 for definitions

2. Is it an “Insurrection?”
   1. “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
   2. So this is complex because it uses some loaded words that are important, including “rebellion” and “insurrection,” so it’s self-referential. So we go to a definition from “Findlaw:”
      1. Rebellion and insurrection refer specifically to acts of violence against the state or its officers. This distinguishes the crime from sedition, which is the organized incitement to rebellion or civil disorder against the authority of the state. It also separates the crime from treason, which is the violation of allegiance owed to one’s country by betrayal or acting to aid the country’s enemies.
   3. Violence against the state? If the Capitol doesn’t represent the State, I ddon’t know what does. Damage was done to that State building, and the State officials – house reps and senators – were forced to evacuated due to a danger to their physical security. Seems clear by pretty much any definition of the word that the mob storming Congressing were engaged in an insurrection.  
   4. For the President? Again, seems pretty clear that he was actively involved in organizing and inciting the insurrection. That still might mean that he gets off, but his Jury will be the Senate, and Republican Senators (besides Romney, who said it was Trump’s insurrection) are talking openly about possibly supporting it, such as Sasse and Murkowski. 
   5. Two pipe bombs ended up in the Capitol. A truck full of bombs and guns was found near the capitol. However sloppy and ill-prepared, there was very clear intent to use violence to subvert US law and the election. Insanity, for sure. But let it sink in. Very real.
3. Is it “sedition?”
   1. (Conspiracy to Sedition) If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
4. Is it “Treason?”
   1. Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
   2. It’s not treason. 
5. Is it a “Coup?”
   1. We don’t have a legal definition so we’re going to try to be neutral and use Wikipeida’s:
      1. A coup or coup d’état is the removal of an existing government from power, usually through violent means. Typically, it is an illegal, unconstitutional seizure of power by a political faction, the military, or a dictator.
   2. The “illegal” part is interesting, but it seems there were a few things Trump wanted people to do that were definitely illegal to keep himself in power, including but not necessarily limited to:
      1. Having Barr arrest Biden for no particular reason
      2. Calling the secretary of state of Georgia (this call is recorded) and telling him to “find” enough votes to give Trump the election
      3. Insisting very publicly that Pence use power he does not have to reject the certification of Biden’s win
   3. So if it doesn’t have to be violent, then yes, Trump was transparently trying to sage a coup. (It’s not obvious that Trump specifically hoped that the mob would storm the capitol and do… what? Capture Congresspeople? Convince them through intimidation to overturn the election?… but he very clearly lied to them, riled them up, and didn’t do anything to stop them once they started)
   4. Were the Capitol Police involved? Maybe: From Business Insider:
      1. “Some among America’s military allies believe Trump deliberately attempted a coup and may have had help from federal law-enforcement officials”
      2. ….however from another angle, if they were trying to accomplish anything concrete (such as support a coup), the incompetence is truly incredible
      3. We’ve looked at a few dozen videos and images and news interpretations and at this point you can paint any story you want, including that they were pushing hard to prevent the mob, got overwhelmed, and decided to de-escalate
      4. And to be absolutely certain there will be gobs and gobs of investigations so we’ll learn a lot more later
   5. Why wasn’t the National Guard there, like in the BLM protests?
      1. Accurate images show the Capitol COVERED with camo and AR’s for BLM protests… so what gives?
      2. DC mayor requested Nat’l Guard before Trump’s rally… fearing violence. Great AP article from Jan 4th showing that the Mayor saw this coming a mile away
      3. But…. guess who gets to call the Nat’l Guard to DC? That’s right, Trump.
      4. Maryland governor was apparently begging to send in the Maryland guard and they kept waiting for approval for 90 mins
      5. White house sources (anonymous ones) say that Pence had to pressure Trump heavily to make the call
         1. Speculation: maybe threatened the 25th
6. Was there premeditation?
   1. Yes, this is easily confirmable. The rally had been advertised for weeks, and Trump and Trump’s representatives repeatedly encouraged the use of violence at that rally:
      1. Trump: ““The bottom line is, the court is saying, ‘We’re not going to touch this. You have no remedy’,” he told the right-wing outlet Newsmax. “Basically, in effect, the ruling would be that you got to go to the streets and be as violent as Antifa.””
      2. Comment all the way back in the debates to a militia group that was involved in the insurrection (Proud boys): “stand back, and stand by”.
7. Was there clear coordination by Republican leaders? Yes
   1. The mob was not acting without coordination – Republican leaders were actively encouraged violence the day of the insurrection:
      1. Trump started tweeting on December 19th about holding a rally, and kept promoting it until it happened. 
      2. Trump’s son, who has been active in his political operations, said “This isn’t their Republican party any more. This is Donald Trump’s. If you’re gonna be the zero and not the hero, we’re coming for you and we’re going to have a good time doing it.”
      3. The crowd followed his instructions and began marching on the Capitol.“
      4. Giuliani – Trial by Combat.
      5. Representative Mo Brooks, at the rally, said: “Today is the day American patriots start taking down names and kicking ass!”
8. 1st amendment rights, freedom of speech, and speech that incites violence
   1. Just in case anyone’s forgotten – the 1st amendment does not give you the right to speech that immediately incites violence, which Trump and many his leaders clearly did before the Capital siege.
9. Is there sympathy to be had for the mob devil?
   1. A friend, who does not support the riots but is trying to think about how things went down, asked: “Let’s say you lived in a place like Iran, Turkey, Belarus, or Russia, where it’s pretty obvious to you that the guy in power rigged the election. How would you feel, and what action would you think is justified?”
   2. It’s clear many Trump supporters truly believe Trump’s claims of widespread election fraud and a conspiracy to rig the vote against him. This is insane, but they believe it. 
10. What started it all: false claims of fraud.
    1. What’s frustrating is how transparent it was.
    2. Trump calling Georgia to say “find the fraud” (this is recorded) is an obvious admission that he knows of none, but wants there to be some in his favor. 
    3. Any meaningful lawsuit about the election was thrown out by judges, many of whom he appointed.
    4. There is a system to investigate such claims, even when baseless and absurd, and it was carried through.
11. ReConsider Moment
    1. There’s a lot we’re still going to learn in the months to come. Congressional hearings _will_ happen. Subpoenas will be filed, and some very uncomfortable people are going to be on the stand
    2. Should Trump have been 25th’d? Erik says no: could feed Deep State Coup conspiracies and possibly cause tons of violence. Very much a last resort and I speculate that Pence knows this.
       1. Xander doesn’t know enough about the legal process to really know, but based on what I’ve read it seems like the 25th amendment would be too slow of a process to actually get him out in the next 10 days, anyways.
    3. This isn’t over, sadly. There is a meaningful chunk of the right wing that has been radicalized and believes deeply that the Democrats launched a coup and they are the only ones left that can do something about it. Why we have found ourselves in this reality is a complex issue
       1. We live in a country that has always celebrated the idea of The People rising up against Tyranny… and these people think there was Tyranny from the Democrats (ironically)
       2. This’ll get worse before it gets better. There will be violence. On Jan 9th, “Hang Mike Pence” was trending on twitter. Every single person who has not supported Trump’s attempted coup is in real danger for their safety and that of their families. It is a sad state of affairs. 
          1. This was predictable and preventable. Republicans could have impeached the President; with the exception of Senator Romney, they chose to hitch their wagons to Trump despite knowing that he is unstable, selfish, and does not care for the rule of law. 
          2. In Xander’s minds, this makes many elected representatives – especially the ones that continued to support objections to the vote counts even after the rebellion –  complicit in the attempt to violently overthrow the government. 
             1. The objections after are a political stunt – clear because they have the evidence and there is none of fraud
             2. The fact that 150 house reps still objected means they were willing to continue to lie to play politics and continue the perception among Trump supporters that there was mass fraud, which increases the risk of further violence
          3. Clearly, justice needs to be served. Criminals needs to be tried in a court of law and, if found guilty, go to jail. This includes elected representatives.’
          4. But here’s one of the scarier thoughts swirling around Xander’s head: let’s say justice is served, and maybe even some  current republican leaders go to prison. Now, imagine a year, not far in the future, when the world has again changed dramatically, and Republicans have reformed a governing coalition. How? Beats me, but it seems entirely possible that this could happen. Do yuo think the people who supported Trump – who will be violently angry throughout the entire Biden administration – will be less angry and violent after convicting people they consider to be their leaders? They’ll see it – however wrong they are – as an escalation in political violence. And, with the precedent set, they may at that point escalate further and start imprisoning political opponents that have not actually committed any crimes or are complicit in acts of insurrection. 
          5. And what scares me, is that this future, while I don’t think it’s the most likely scenario, seems exceedingly possible. We’re already on a dark road, and we need to do everything we can to stem the cycle of violence. But we ALSO need criminals to face justice. How do we think about that tradeoff?
    4. Reconsider mission: at this point, in my humble opinion, one way to think about our social responsibilities in the year to come is no longer crisis prevention, which is ultimately what the ReConsider mission has been about all along, since the crisis is already here. At this point, maybe thinking about damage/downside mitigation is the way to go. The crisis has already arrived. Now what? 
    5. How do we come back from this? This is not a matter of reasonable discussion, sadly. If you believe the4 Democrats successfully staged a coup, and no amount of evidence will dissuade you, what can actually be done?

https://www.law.cornell.edu/uscode/text/18/2383

https://www.law.cornell.edu/uscode/text/18/2384

https://apnews.com/article/joe-biden-donald-trump-politics-electoral-college-muriel-bowser-1634bf71a27de48efef3cd1e6ed4abe4

https://www.cnn.com/2021/01/08/politics/us-capitol-riots-arrest-pelosi-desk/index.html

https://www.foxnews.com/us/video-shows-capitol-police-officer-being-crushed-during-crowd-rampage-howling-in-pain

https://news.google.com/articles/CAIiELHnMMW6IHtfTIQAB-NwA50qGAgEKg8IACoHCAowjtSUCjC30XQwzqe5AQ?hl=en-US&gl=US&ceid=US%3Aen

https://www.foxnews.com/politics/twitter-trending-hang-mike-pence

https://www.stltoday.com/news/local/govt-and-politics/feds-police-found-pickup-truck-full-of-bombs-guns-near-capitol-insurrection/article_fac572a3-c061-5146-ba19-0ac323cf45d9.html

https://www.theguardian.com/us-news/2021/jan/07/trump-incitement-inflammatory-rhetoric-capitol-riot

https://www.latimes.com/california/story/2021-01-09/donald-trump-twitter-california&sa=D&ust=1610240661962000&usg=AOvVaw23fAUiiE4D2AB4NQ9qr3t3

https://www.vox.com/2021/1/6/22218058/republicans-objections-election-results

https://www.stltoday.com/news/local/govt-and-politics/feds-police-found-pickup-truck-full-of-bombs-guns-near-capitol-insurrection/article_fac572a3-c061-5146-ba19-0ac323cf45d9.html

https://www.latimes.com/california/story/2021-01-09/donald-trump-twitter-california